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Hello Dolly the Sheep, the Unpatentable! And, an Oracle Win

By Gabriella Khorasanee, JD on May 13, 2014 | Last updated on March 21, 2019

In the never-ending circle of litigation that Google, and other tech companies, are engaging in otherwise known as "Smartphone Wars," the Federal Circuit has dealt a blow to Google.

And, in one of the more interesting patent cases before the Federal Circuit, the court had to determine whether clones themselves, could be patented. It should be noted that the methods for cloning, which are patented, were not at issue in the case. Read on for details in both cases.

Oracle America, Inc. v. Google Inc.

Oracle sued Google for allegedly incorporating parts of Java in Android, Google's best selling worldwide operating system for smartphones. The closely watched case featured dueling testimony of the Larry's from Oracle's ECO Larry Ellison and Google's CEO, Larry Page, reports Reuters. The Federal Circuit reversed a San Francisco District Court's previous ruling that the parts of Java could not be copyrighted.

Writing for the court, Judge Kathleen O'Malley stated, "We conclude that a set of commands to instruct a computer to carry out desired operations may contain expression that is eligible for copyright protection." It's not over though; the case has been remanded for the district court to determine whether Google can use a fair use defense.

In re: Roslin Institute (Edinburgh)

You may remember Dolly, the sheep in -- uh, sheep's clothing. That is, Dolly was a clone. The creators of Dolly patented the process for creating Dolly, but that wasn't enough. They wanted to patent Dolly -- the actual clone as well. The Patent Trial and Appeal Board found that Dolly was not patentable, and the Federal Circuit agreed, on the basis of 35 U.S.C. § 101, reports Bloomberg. Because Dolly was genetically identical to her donor parent, the court found her unpatentable.

The court clarified that clones with "the same nuclear DNA as the donor mammal may not necessarily result in patent ineligibility in every case. Here, however, the claims do not describe clones that have markedly different characteristics from the donor animals of which they are copies." This certainly won't be the last we hear of cases like this, but this is the last word -- for now.

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